Benson v. Russell's Cuthand Creek Ranch, Ltd.
| Decision Date | 12 July 2016 |
| Docket Number | No. 5:14-cv-161-JRG,5:14-cv-161-JRG |
| Parties | DUANE BENSON AND WIFE, SANDRA BENSON Plaintiffs, v. RUSSELL'S CUTHAND CREEK RANCH, LTD., DUCKS UNLIMITED, INC., AND NATURAL RESOURCES CONSERVATION SERVICE Defendants. |
| Court | U.S. District Court — Eastern District of Texas |
Before the Court is the Motion to Dismiss for Lack of Jurisdiction filed by the Defendant Natural Resources Conservation Service ("NRCS") (Dkt. No. 65) (the "Motion to Dismiss") and the Motion for Leave to File a Fourth Amended Complaint filed by Plaintiffs Duane and Sandra Benson (the "Bensons") (Dkt. No. 70) (the "Motion for Leave"). Having considered both motions, the Court GRANTS the Motion to Dismiss and DENIES the Motion for Leave for the reasons stated below.
On May 3, 2016 the Court denied NRCS's Motion to Remand for Lack of Subject Matter Jurisdiction Pursuant to 28 U.S.C. 1447(c) (Dkt. No. 48). The relevant facts related to the posture of this case are described in that Memorandum Opinion and Order.
On May 18, 2016, NRCS filed the Motion to Dismiss. (Dkt. No. 65.) In the Motion to Dismiss, NRCS argues that this Court does not have subject matter jurisdiction over claims against the NRCS because (1) the Federal Tort Claims Act ("FTCA") requires the United States be a named defendant and (2) the United States Court of Federal Claims ("Court of Claims") has exclusive jurisdiction over Plaintiffs' claims for breach of contract and inverse condemnation.
On June 1, 2016, Plaintiff responded to the Motion to Dismiss and requested leave to file their Fourth Amended Complaint. Such amendment would effectively substitute the United States as a party in place of NRCS and would withdraw Plaintiffs' breach of contract and takings claims against the Government. (Dkt. No. 70.) As stated in their motion, Plaintiffs seek leave to amend their Third Amended Complaint so as to: "(1) add the United States as a party defendant, (2) abandon their contract claim as to the United States or any of its agencies, (3) abandon their inverse condemnation claim, (4) limit their claims for injunctive relief to the non-government defendants, and (5) further clarify its existing claims." (Id. at 1.) According to Plaintiffs, such an amendment would vest this Court with subject matter jurisdiction. NRCS opposes Plaintiffs' Motion for Leave, arguing that the proposed amendments would be of no effect because the Court would still lack subject matter jurisdiction over Plaintiffs' amended claims.
Whether the Court has subject matter jurisdiction over the amended claims against the United States per the proposed Fourth Amended Complaint or over the unamended claims against NRCS per the Third Amended Complaint, are the subjects to which the Court now turns.
Federal Rule of Civil Procedure 15(a) states that leave to amend a pleading "shall be freely given when justice so requires." However, it is well established that the Court should not grant leave to amend a pleading if the amended pleading is futile, for example, if the amended claims would be subject to dismissal for lack of subject matter jurisdiction or would fail to state a claimupon which relief could be granted. See Spotts v. United States, 613 F.3d 559, 565 (5th Cir. 2010); Stripling v. Jordan Prod. Co., 234 F.3d 863, 873 (5th Cir. 2000).
The FTCA is a broad, but limited waiver of the federal government's sovereign immunity. In pertinent part, the liability of the United States under the FTCA is subject to the "discretionary function" exception. United States v. Gaubert, 499 U.S. 315, 322 (1991). Pursuant to this exception, the government does not waive sovereign immunity over claims "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a). The Government argues here that this Court would lack subject matter jurisdiction over Plaintiffs' prospective claims because those claims challenge conduct that involves a discretionary function.
In deciding whether conduct involves a discretionary function, courts apply a two-part test. First, the relevant conduct must involve an element of judgment or choice. Berkovitz v. United States, 486 U.S. 531, 536 (1988); Spotts, 613 F.3d at 567. However, if a statute, regulation, or policy prescribes or proscribes a certain action, then the agency is bound to act in a particular manner, and the Government is not protected by the discretionary function exception. Gaubert, 499 U.S. at 322. Second, even if the action requires judgment or choice, the exception only shields those judgments or choices which are based on considerations of public policy. Id. at 322-23. Here, the focus is on the nature of the actions taken and whether they are susceptible to policy analysis. Id. at 323, 325; Gibson v. United States, 809 F.3d 807, 812 (5th Cir. 2016). While the party asserting federal jurisdiction has the burden of demonstrating that jurisdiction is proper, the circuits are split on the issue of whether the plaintiffor the government bears the burden of establishing that the discretionary function exception applies. See St. Tammany Parish v. FEMA, 556 F.3d 307, 315 n.3 (5th Cir. 2009).
Plaintiffs have requested leave to add the United States as a defendant to the tort claims they have brought under the FTCA. NRCS opposes such leave to amend because it argues that the amendments are of no effect since the discretionary function exception bars recovery for any tort claim alleged in the Complaint against the Government. Regardless of which party bears the burden of proof, the Court finds that the discretionary function exception is applicable and as such it bars all of Plaintiffs' prospective tort claims against the United States.
The Roath decision from the Eastern District of Wisconsin, while not controlling authority, is helpful and instructive. Roath v. United States, 843 F. Supp. 2d 944 (E.D. Wis. 2011). Under substantially similar facts, the Roath plaintiffs advanced similar claims against the United States. The Roaths filed a complaint against the United States pursuant to the FTCA in which they alleged that their property suffered damage due to the restoration of wetlands near their property. Id. at 946-47. The adjacent landowners granted a 30-year easement on the land contiguous to the Roaths' property to facilitate action by the United States pursuant to the Wetlands Reserve Program ("WRP") intended to improve the condition of certain wetlands, thereby enhancing the area's environment. Id. at 947. The Roaths claimed the NRCS caused certain drain tiles to be removed from the easement area which that had been in place since the 1930s, and that the removal of these tiles caused their property to be damaged by excessive water. See Roath v. United States, No. 10-C-0228, 2012 WL 4718123, at *2 (E.D. Wis. Sept. 28, 2012). On the pleadings, the Roath court held that the Government could not be liable for such claims based on the discretionary function exception.
Here, taking the Plaintiffs' operative allegations as true, the levee system built by Ducks Unlimited (with funding and active oversight by NRCS) pursuant to the WRP has caused flooding, erosion, and related damage to the Benson property. The WRP is a program intended to promote and further certain public policy goals. It is a program that clearly confers discretion to the NRCS. The harm complained of relates to the design and construction of such levees pursuant to the WRP. Therefore, this case falls well within the discretionary function exception. Such a conclusion compels this Court to find that the discretionary function exception applies, and bars any claim directed toward the design and construction of the levee system pursuant to the WRP as implemented upon the Russell property. See also Oceanview Farms, L.P. v. United States, 213 F.3d 632 (4th Cir. 2000); cf. In re Katrina Breaches Litig., 616 Fed. App'x 659, 661 (5th Cir. 2015) ( that regulations that listed extrinsic constraints and considerations, but did not compel a particular method of dredging, left the decision on the manner of dredging to the government based on its evaluation of competing considerations).
Plaintiffs, in their briefing, attempt to elude the logic of the Roath decision by focusing on an asserted government duty to monitor, maintain, and operate the levee in question. Plaintiffs claim that such maintenance duties were mandatory and that such maintenance duties are not susceptible to policy analysis. Despite Plaintiffs' briefing, the Court is not convinced that the proposed Fourth Amended Complaint clearly states a claim against the United States for a failure to monitor, maintain, and operate the levee in question. Plaintiffs say that had Defendants "monitored and managed the easement" that they would have "known of the continuing damage to the Benson property," but this only confirms that it is the design and construction of the levee that caused the damage—and not a failure to subsequently maintain the levee. Plaintiffs do...
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